NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 30 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT ROMOFF; JOE SICILIANO, No. 22-55170 individually and on behalf of all others similarly situated, D.C. No. 3:21-cv-00938-WQH-BGS Plaintiffs-Appellants,

v. MEMORANDUM*

GENERAL MOTORS LLC,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted December 6, 2022 Pasadena, California

Before: KELLY,** M. SMITH, and COLLINS, Circuit Judges.

Plaintiff-Appellants Robert Romoff and Joe Siciliano (together, “Plaintiffs”)

appeal the district court’s order granting Defendant-Appellee General Motors

LLC’s (“GM”) motion to dismiss their class action complaint. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. jurisdiction under 28 U.S.C. § 1291, and we affirm.

We assume the parties’ familiarity with the record. We review de novo a

district court’s dismissal of a complaint under Rule 12(b)(6), taking all allegations

of material fact as true and construing the facts in the light most favorable to the

plaintiffs. Moore v. Mars Petcare US, Inc., 966 F.3d 1007, 1016 (9th Cir. 2020).

The complaint asserted violations of the California Unfair Competition Law

(UCL), Cal. Bus. & Prof. Code § 17200–17210, California Consumer Legal

Remedies Act (CLRA), Cal. Civ. Code § 1750–1784, and New Jersey Consumer

Fraud Act (NJCFA), N.J. Stat. Ann. § 56:8-1, and also brought claims of unjust

enrichment. ER 103–20. Deceptive conduct is required to state a claim for relief

under the relevant provisions of both California and New Jersey law. Under

California law, the standard is whether a reasonable consumer is likely to be

deceived. Patricia A. Murray Dental Corp. v. Dentsply Int’l, Inc., 227 Cal. Rptr.

3d 862, 873 (Cal. Ct. App. 2018). Under New Jersey law, the standard is whether

the average consumer would be misled. Union Ink Co. v. AT&T Corp., 801 A.2d

361, 379 (N. J. Super. Ct. App. Div. 2002).

Plaintiffs argue the district court erred by not considering McKell v.

Washington Mutual, Inc., 49 Cal. Rptr. 3d 227 (Cal. Ct. App. 2006) in determining

whether their complaint alleged deceptive conduct. We disagree. Plaintiffs have

not plausibly alleged deception, and McKell is inapposite. In McKell, the court

2 allowed a UCL case to proceed where the plaintiffs attempted to obtain a home

loan from a bank that itemized a series of fees and charges without disclosing that

the amounts it paid were substantially less than it charged to plaintiffs. 49 Cal.

Rptr. 3d at 234–35. Here, by contrast, the destination fee is charged to the dealers

and paid by them to GM, regardless of Plaintiffs’ speculative reasoning concerning

what is responsible for the makeup of such fees. There is no allegation that GM

charged the dealers a lesser amount than is represented to consumers, enabling the

dealer to earn a secret profit from consumers. We hold that a reasonable or

average consumer would not be deceived by the destination charge underlying

each of Plaintiffs’ claims. Because there is no deception, the complaint fails to

state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

AFFIRMED.

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